ALJDEC decisions subject to certification as final

2012A-4409-ROC · Registrar of Contractors · 2013-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2013, at 8:00 a.m. APPEARANCES: Complainant Susan Pucelik appeared on her own behalf; Respondent Capital R Inc. dba Capital R Construction appeared through Roddy Dale “Rusty” Riggs, its Qualifying Party and President. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.190936-D to Capital R Inc. dba Capital R Construction (“Respondent”). On or about September 5, 2012, Susan Pucelik (“Complainant”) filed a Complaint with the Registrar that alleged eleven specifically enumerated deficiencies in Respondent’s installation of pavers, landscaping, sprinklers, and a drip irrigation system at Complainant’s residence at 641 South Boulder Court, Gilbert, Arizona 85296. Complainant requested in the Complaint, among other things, that the Registrar require Respondent to pay her landscaper or another contractor to correct workmanship issues. The Complaint was assigned to the Registrar’s inspector, Randy Cason, for investigation. Inspector Cason performed an onsite inspection and on October 9, 2012, issued a Corrective Work Order (“CWO”) that required Respondent to perform certain corrective actions with fifteen calendar days, in relevant part as follows: Complaint #1 – Plants in pots and plant in ground are on the same valve/watering system. Need 2nd line for all pots including the sago palm (use PVC pipe, connected to the available 3rd valve which is already installed at the residence) Reviewed the contract specifications, it does not state how many valves are to be installed for the drip line system. No Action is required by the Respondent. . . . .

Complaint #3 – Emitters adjusted to “fan” out the water to cover the surface dirt in each pot or change the emitters to fan- type of emitters. It appears that the Emitters are working; however some of the Emitters are only watering one section of the potted plant area. The Respondent is to adjust the Emitters to cover the area intended [to] and is also to verify that the proper amount of water is being supplied to all the plants and trees per the nursery’s recommendations by appropriate means. . . . .

Complaint #5 – Grout is cracking in pavers (several locations) Found that the Respondent had installed grout around the brick border; grout has and is coming out of the joints. The Respondent is to correct by appropriate means.

The CWO advised the parties that “[f]rom a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.” After Respondent failed to resolve all of the complaint items to Complainant’s satisfaction, she requested a hearing. The Registrar issued a Citation and Complaint charging Respondent with possible violations of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-109, and A.R.S. § 32-1154(A)(23). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on November 5, 2013. Inspector Cason testified. Complainant submitted two exhibits, referred the Administrative Law Judge to documents that she had filed with the Registrar that were included in the electronic record, and presented the testimony of three witnesses: (1) Herself; (2) Gary Davis, the president of Davis Landscape Maintenance, Inc.; and Michael Pucelik, her husband. Respondent’s Qualifying Party and President, Roddy Dale “Rusty” Riggs, testified on its behalf. Hearing Evidence Inspector Cason testified that after he issued the CWO, he received a telephone call from Respondent’s subcontractor stating that all of the items on the CWO had been corrected, except for Item No. 3, because Complainant would not allow the emitters to be adjusted unless Respondent agreed to install another drip irrigation line. Inspector Cason testified he performed a second jobsite inspection on April 22, 2013, and that Complainant stated that Respondent had corrected some of the items but that she remained dissatisfied with CWO Item Nos. 3 and 5. With respect to Item No. 3, Inspector Cason testified that it appeared that Respondent had adjusted the emitters so that they watered the entire pot area, but that Respondent had been unable to adjust the flow of water to comply with watering guidelines set forth the documentation that Complainant had obtained from various nurseries. Inspector Cason testified that Complainant did not believe that Respondent’s adjustments were appropriate. Inspector Cason testified that on April 22, 2013, he verified that grout was missing from some of the pavers that Respondent had installed (CWO Item No. 3). Inspector Cason testified that he performed a prehearing jobsite inspection on November 4, 2013. Inspector Cason testified that his prehearing jobsite inspection revealed that the grout was still missing from the pavers and no further adjustment had been made to the emitters. Mr. Riggs testified that Respondent had not repaired the missing grout through an oversight, but that it would repair the grout as a warranty item. Mr. Davis testified that he has been the operations director of the Yuma Palms resort, responsible for all of its landscaping. Mr. David testified that he also was responsible for landscaping at Falls Ranch subdivision in Yuma. Although he is not currently a licensed contractor, Mr. Davis testified that he was licensed for five years between 1987 and 1993. Mr. Davis testified that the standard of care in the landscaping profession is for outdoor potted plants, shrubs, and trees to be on separate drip irrigation lines, valves, or zones[1] because they have different watering needs. Potted plants need to be watered every day, shrubs need to be watered every five days, and trees need to be deep- watered every ten days or so.[2] Mr. Davis testified that due to the variety of plants on Complainant’s property, including potted plants, shrubs, and trees, the one irrigation line that Respondent had installed with multiple emitters was inadequate. Mr. Davis testified that the standard of care in the landscaping profession required the contractor who installed the irrigation system to specify what it would be doing in the contract and to install the number of lines necessary to obtain the optimal watering for each zone of plant. The only specification for the drip irrigation system on Respondent’s July 18, 2012 proposal was to perform “[a]dditional landscape per Landscape Consultants Estimate” at a cost of $3,050.00.[3] The only mention of irrigation on Landscape Consultants, LLC’s proposal, which Complainant provided to the Registrar, was “Grass Removal/Replacement includes irrigation relocation” at a cost of $500.00.[4] Landscape Consultants, LLC’s proposal included additional work and a total cost of $3,000.00. Complainant testified that because Respondent only installed one valve, all the plants in the backyard were watered at the same rate when any of the plants were watered. Complainant testified that as a result, the potted plants were dying. Mr. Riggs testified that there were several ways to irrigate the plants in the backyard of Complainant’s residence. Mr. Riggs testified that Respondent attempted to balance the cost of the project with quality by installing only one valve with multiple adjustable emitters for the drip irrigation system. Mr. Riggs testified that by adjusting the emitters, for example, substantially reducing the flow at the emitters for the potted plants when the trees were deep-watered, Complainant could deep-water the trees every ten days, and by increasing the flow to the pots in between the times she deep-watered the trees, she could water the potted plants daily. Mr. Riggs testified that by making similar adjustments, Complainant could provide optimal watering for her shrubs. Mr. Riggs testified that the additional cost for another two drip irrigation lines was between $750.00 and $1,000.00. Mr. Riggs testified that although he had offered to install another two lines for Complainant for an additional $500.00 payment, Complainant declined to pay any additional monies to alter the drip irrigation system to her specifications. Complainant provided to the Registrar certain documentation from nurseries and others to support her argument that Respondent should have installed three drip irrigation lines in her backyard for the potted plants, shrubs, and trees, as follows: 1. A note from an unnamed employee at Moon Valley Nursery dated October 17, 2012, that “I think you should add another line to the roses because of all the sun hitting the sides of the pots making the water evaperate [sic] faster and to water at least once a day.”[5] 2. A note from one Daniel Soto at A & P Nurseries No. 3 dated October 14, 2012, that “[i]n order for proper watering for potted plants, the plants need to [sic] seperate [sic] lines or zones for correct watering.”[6] 3. A note from Jay Harper at Harper’s Nursery and Flower Shop dated November 5, 2012, stating that “[a]lthough it is not considered mandatory or code to ‘split’ watering systems into zones or category watering by type of plant it is customary.”[7] 4. An excerpt from a publication entitled “Landscape Watering by the Numbers: A Guide for the Arizona Desert” providing as follows: Are your trees and shrubs on the same valve?

Many systems have been installed with one valve to water plants of different types and sizes. In the example on the Run Time Worksheet (page 10), trees, shrubs, and succulents are all watered on the same valve. Since these plants have different watering needs, it would be more efficient to have them watered by different valves.[8]

5. An excerpt from “Guidelines for Landscape Drip Irrigation Systems” published by the Arizona Landscape Irrigation Guidelines Committee of the Arizona Municipal Water Users Association (July 2001), stating that “[t]he landscape irrigation system must be properly zoned. Other plants within the hydrozone must be watered proportionally for their size and type.”[9] Mr. Riggs testified that Complainant refused to allow Respondent to adjust the emitters to comply with the CWO unless it agreed to install additional drip irrigation lines at no cost to Complainant. Complainant did not dispute Mr. Riggs’ testimony. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 22, 2012. Such prior License record reflects that Respondent’s License No. KB-1.190936-D was current. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether cause exists to discipline Respondent’s license under the charged subsections of A.R.S. § 32-1154(A). 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.[10] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[11] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[12] 3. The CWO noted that because Respondent’s contract did not specify the number of lines that it would install for the drip irrigation system at Complainant’s property, the CWO did not require Respondent to install additional drip irrigation lines. 4. Because Mr. Davis is not a licensed contractor, the Administrative Law Judge does not give his opinion regarding industry requirements for licensed contractors much weight. Jay Harper’s note stated that no code required multiple drip irrigation valves for trees, shrubs, and potted plants. The other documents that Complainant provided to the Registrar indicate that although multiple valves provided optimal drip irrigation for different kinds of plants, it was not uncommon or unacceptable for a single valve to provide drip irrigation for different kinds of plants. 5. Complainant did not establish that Respondent departed from or disregarded plans, specifications, or applicable codes when it installed the drip irrigation system. Therefore, Complainant did not establish cause for the Registrar to discipline Respondent’s license under A.R.S. § 32-1154(A)(2).[13] 6. Inspector Cason testified and Mr. Riggs did not dispute that the grout that Respondent had installed in the pavers was cracking and coming out of the joints (CWO Item No. 3). Because Complainant established that the grout did not comply with workmanship standards, she established cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[14] 7. Complainant also established that Respondent failed to comply with the CWO with respect to the cracked grout, furnishing cause for the Registrar to discipline its license under A.R.S. § 32-1154(A)(23).[15] 8. As noted above, Complainant did not establish that Respondent contracted or was paid to install multiple drip irrigation lines or that applicable code or industry standards require multiple drip irrigation lines for different kinds of plants (CWO Item No. 5). Inspector Cason testified that Respondent had adjusted the emitters to provide better coverage for the potted plants. Mr. Riggs credibly testified that the emitters on a single drip irrigation line must be manually adjusted to provide the recommended watering for the different kinds of plants on the line. The Registrar’s workmanship standards do not require contractors to meet optimal standards, only to comply with code, specifications, and minimum workmanship standards. Therefore, even though Complainant established that Respondent installed a single drip irrigation line that was not the optimal system that several nurseries recommended, Complainant did not establish that Respondent did not install the line in a professional and workmanlike manner or that additional cause exists for the Registrar to discipline Respondent’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108. 9. Respondent established that Complainant denied reasonable access for it to perform additional adjustments to the emitters and that, in any event, further one-time adjustments of the emitters would not cause the drip irrigation system to provide the optimal amount of water on the optimal schedule for the various kinds of plants that the nurseries recommended. The nurseries’ recommendations for watering can only be achieved through the installation of additional drip irrigation lines, which Respondent did not contract to install and code and professional standards did not require. Because Respondent established legal justification for its failure to comply with CWO Item No. 3 to supply the amount of water on the schedule that the nurseries recommended to the various plants, Complainant did not establish additional cause for the Registrar to discipline Respondent’s license under A.R.S. § 32-1154(A)(23).[16] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order, Respondent Capital R Inc. dba Capital R Construction’s License No. KB-1.190936-D shall be suspended until it corrects in a professional and workmanlike manner the grout in the pavers that it installed at Complainant Susan Pucelik’s property. It is further recommended that if the Registrar receives written proof from Respondent, and accepts such proof, that Respondent has corrected in a professional and workmanlike manner the grout in the pavers that it installed at Complainant’s property, Respondent’s license shall not be suspended but, instead, the Registrar shall close Complainant’s Complaint in Case No. 2012-4409. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final Order, the Registrar shall revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, November 22, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The words “valve,” “line,” and “zone” all refer to a single delivery mechanism in a drip irrigation system. [2] See the Registrar’s electronic record at Insp Correspondence From Complainant1.pdf, page 8 (A & P Nursery chart for watering frequency). [3] Complainant’s Exhibit 2. It does not appear that Landscape Consultants is a licensed contractor. [4] The Registrar’s electronic record at Insp Correspondence From Complainant2.pdf, page 6. [5] The Registrar’s electronic record at Insp Correspondence From Complainant1.pdf, page 2. [6] Id. at page 7. [7] Id. at page 15. [8] Id. at page 17. Complainant did not provide to the Registrar the Run Time Worksheet at page 10 of this publication. [9] Id. at 22. [10] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [11] See A.A.C. R2-19-119(B)(2). [12] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [13] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [14] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [15] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [16] Complainant received the drip irrigation system that she paid for. If Complainant wants her plants to receive the optimal amount of water on the optimal schedule, she may either pay a contractor to install additional drip irrigation lines or manually adjust the emitters on the drip irrigation line that Respondent installed to provide the optimal irrigation schedule for her potted plants, shrubs, and trees.

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